Opinion
94 Cr. 466 (JFK), 99 Civ. 1877 (JFK)
January 16, 2001
Franklin Grullon, Pro Se, F.C.I. Forrest City Forrest City, Arkansas, for the Petitioner.
Mary Jo White, United States Attorney, S.D.N Y New York, New York, Of Counsel: AUSA Marcia S. Cohen, Attorneys for the United States of America.
ORDER AND OPINION
Before the Court is the Petitioner, Franklin Grullon's ("Grullon"), motion to vacate his conviction, pursuant to 28 U.S.C. § 2255. This Court sentenced Grullon to seven years' imprisonment for violations of 18 U.S.C. § 1959(a)(6) and 21 U.S.C. § 843(b). As stated in this Court's Order of December 11, 2000, and for the reasons that follow in this Opinion and Order, Grullon's motion is denied.
BACKGROUND
Grullon and sixteen other defendants were originally charged in an eighty-six count superseding indictment, S2 94 Cr. 466 (JFK) ("the Indictment"), which was unsealed on November 16, 1994. The Indictment charged Grullon with being a member of a criminal enterprise known as the Head Crackers/Willis Avenue Lynch Mob ("HC/WALM"). Grullon and the other defendants were charged in Counts One and Two with violating the substantive and conspiracy provisions of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c), 1962(d).
The Indictment charged that Grullon and his co-defendants committed and conspired to commit six armed robberies of retail businesses in 1993. The Indictment further charged Grullon with six predicate acts of racketeering as well as non-RICO offenses arising from those predicate acts, including robbery ( 19 U.S.C. § 1951) and the use of firearms during and in relation to violent crimes ( 18 U.S.C. § 924(c)).
Grullon also faced unrelated additional federal charges in an indictment before Judge Sweet of this court. Those charges stemmed from undercover agents' purchases of $20 packets of cocaine from a "dial-up" cocaine-delivery service operated by Grullon. That indictment, 95 Cr. 25(RWS), charged Grullon with one count of conspiracy to sell cocaine in violation of 21 U.S.C. § 812, 841(a)(1), 841(b)(1)(C), and 846.
Grullon was represented at his first appearance before this Court in connection with Indictment 94 Cr. 466 by David Weiss, Esq. ("Weiss"), who was appointed pursuant to the Criminal Justice Act ("CJA"). This Court subsequently discharged Weiss on January 20, 1995 at Grullon's request and appointed CJA attorney Bobbi C. Sternheim, Esq. ("Sternheim").
On August 9, 1995, Grullon and ten co-defendants proceeded to trial before this Court. Several defendants entered into plea negotiations with the Government during jury selection, and by August 24, 1995, all defendants except for Grullon had pled guilty. A new jury was selected for Grullon's trial on August 29, 1995.
Grullon pled guilty before the Honorable Kevin T. Duffy on the following morning. Pursuant to a plea agreement with the Government, Grullon pled guilty to one count of conspiracy to commit a robbery involving an assault with a dangerous weapon in violation of 18 U.S.C. § 1959(a)(6), and one count of using a telephone to converse with a co-conspirator about the distribution of cocaine in violation of 21 U.S.C. § 843(b). The plea agreement provided that Grullon's guilty pleas to those two counts would fully satisfy all charges pending against him before both this Court and Judge Sweet. The two counts to which Grullon pled guilty carried a combined statutory maximum sentence of seven years imprisonment, in contrast to the more than 100 years he could have faced if convicted on all counts in the two indictments.
During the plea proceedings, Judge Duffy established that Grullon understood the charges against him, as well as his right to plead not guilty and instead proceed to trial, and his right to be represented by counsel throughout trial. (Plea Trans. at 3, 11). Judge Duffy established that Grullon understood the maximum penalties for the charges to which he was pleading. (Id. at 3-4). Judge Duffy reviewed the plea agreement with Grullon and established that Grullon had discussed that agreement with Sternheim. (Id. at 3). When Judge Duffy asked Grullon whether anyone had forced him to plead guilty, Grullon responded "no." (Id. at 17).
Judge Duffy read the full superseding information to Grullon. After Grullon acknowledged that he knew that a lie during his plea was "a separate crime for which [he] separately could be punished," he pled guilty to each count. (Id. at 13) He then explained to the Court how he had committed those crimes. Upon completion of the plea allocution, Judge Duffy ruled that "Grullon's plea of guilty [was] knowing and voluntarily made and has a basis in fact," and scheduled sentencing for December 21, 1995. (Id. at 18).
Three months after his guilty plea, on December 8, 2000, Grullon filed a pro se letter application to withdraw his guilty plea and to have Sternheim replaced. Grullon stated in the application that Sternheim had used unethical "boiler-room sales tactics" to pressure him into pleading guilty, and that her assistance was unconstitutionally ineffective. At a conference held to discuss Grullon's application, Grullon maintained that prior to August 29, 1995, he never intended to plead guilty. He also stated that Sternheim had refused his requests to file certain motions and to subpoena certain witnesses in preparation for his trial. Although this Court noted that Grullon had stated during jury selection that Sternheim was a good lawyer, the Court discharged Sternheim and appointed Anthony Ricco, Esq. ("Ricco") under the CJA.
Grullon, through Ricco, filed a motion to withdraw his guilty plea on April 11, 1996. Grullon stated in his motion that he was not guilty and that his plea was the result of extreme psychological pressure and Sternheim's failure to provide effective representation. Ricco supplemented that motion with various documents at Grullon's request, and stated that he had submitted all pertinent issues to the Court in either a declaration, affidavit, memorandum of law, reply, or exhibit.
This Court denied both Grullon's motion to withdraw his plea and his request for an evidentiary hearing in an Opinion and Order dated August 2, 1996. See United States v. Grullon, No. 94 Cr. 466, 1996 WL 437956, at *6 (S.D.N.Y. Aug. 5, 1996) The Court noted Sternheim's thorough pre-trial representation of Grullon, including her ability to broker a plea agreement with the Government that reduced Grullon's potential sentence from over 100 years to seven years. Id. The Court also noted that Sternheim had declared in an affidavit that "the choice to enter a guilty plea was completely [Grullon's]" and that she "placed no pressure on Mr. Grullon" to enter a guilty plea. Id. at *5.
The Court also found Grullon's allegations to be without merit in light of Government affidavits as well as his own delay in making his allegations. The Government submitted affidavits describing an October 2, 1995 proffer meeting at which Grullon confessed to several robberies and revealed that he stored guns at his mother's apartment. See id. at *6. The Government stated in the affidavit that an agent had subsequently recovered three guns from that apartment. Id. Moreover, Grullon himself waited several months before seeking to withdraw his guilty plea, which also undermined his allegations of innocence and pressure.
The Court also denied Grullon's request for an evidentiary hearing, ruling that "[a]n evidentiary hearing is not required where, as here `the allegations on a motion to withdraw a guilty plea before sentencing merely contradict the record, are inherently incredible, or are simply conclusory.'" Id. at *7 (quoting United States v. Gonzales, 970 F.2d 1095, 1100 (2d Cir. 1992)).
The Court discharged Ricco at Grullon's insistence on September 6, 1996 and appointed Marvin E. Schechter, Esq. ("Schechter"), pursuant to the CJA. Through Schechter, Grullon filed his second motion to withdraw his guilty plea, alleging that his prior motion to withdraw his plea was the product of Ricco's ineffective assistance. Grullon alleged that Ricco had conspired with the Government against Grullon's interest, and had submitted an affidavit and raised issues and points of law without Grullon's knowledge, authorization, or consent.
The Court denied Grullon's motion in an Opinion and Order dated December 12, 1996. See United States v. Grullon, No. 94 Cr. 466, 1996 WL 721084 (S.D.N.Y. Dec. 13, 1996). The Court ruled that Grullon had not shown, pursuant to Strickland v. Washington, that his counsel's representation fell below an "objective standard of reasonableness" under "prevailing professional norms," and that he had suffered prejudice due to that representation. Id. at **1-2 (discussing Strickland, 466 U.S. 668, 687-88, 691-94 (1984)). The Court found that Ricco's briefs were "competent and well drafted," and that Grullon's belated accusations against him were "convincingly" false in light of Ricco's affirmation in response to those allegations. Id. at *2 The Court also found that Grullon could not show prejudice because "there is no way he could have prevailed on his first motion to withdraw," in light of the affidavits submitted by the Government and Sternheim, his own plea allocution, and his delay in seeking a withdrawal of his plea. Id.
On December 19, 1996, this Court sentenced Grullon to a term of seven years imprisonment. He subsequently appealed his conviction, asserting that this Court abused its discretion in denying his motion to withdraw his guilty plea. He further contended that this Court abused its discretion by failing to hold an evidentiary hearing into his allegations against the Government, Sternheim, and Ricco. The Second Circuit affirmed Grullon's conviction on November 17, 1997 in United States v. Ramon Torres, 129 F.2d 710 (2d Cir. 1997).
On November 24, 1998, Grullon submitted to this Court both this § 2255 petition and a motion requesting that this Court recuse itself from considering that petition. Grullon formally filed his § 2255 petition and recusal motion with the Court on March 1, 1999 along with three additional documents: (1) "Supplement," dated-January 26, 1999; (2) "Second Supplement," dated March 27, 1999; and (3) "Third Supplement" dated April 22, 1999. On May 6, 1999, Grullon filed a writ of mandamus requesting that the Second Circuit order this Court to rule on his motion for recusal. This Court subsequently directed the Government to respond to that motion for recusal in an Order dated May 24, 1999.
By Order dated March 15, 1999, the Court directed that the Government not address the one-year deadline for § 2255 petitions imposed by the Antiterrorism and Effective Death Penalty Act of 1996, codified at 28 U.S.C. § 2255.
Grullon's § 2255 petition and his motion for recusal are now fully submitted before this Court. By Order dated December 11, 2000, this Court dismissed Grullon's motion for a stay of his deportation proceedings pending this Court's ruling on his § 2255 petition. In that Order, the Court ruled that Grullon's § 2255 petition was denied for the reasons to follow in this Opinion and Order.
DISCUSSION
I Motion for Recusal
Grullon has moved for this Court to recuse itself from his case on the grounds that this Court's rulings and statements indicate a bias against him. Under 28 U.S.C. § 455(a), a judge should recuse himself if "a reasonable person knowing and understanding all the relevant facts would recuse the judge." In re Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1313 (2d Cir. 1988). Section 144 of that Title requires the recusal of a judge where that judge is in fact biased against or in favor of a party.See United States v. El-Gabrowny, 844 F. Supp. 955, 959 (2d Cir. 1994). A finding of bias should be based on "conduct extrajudicial in nature as distinguished from conduct in a judicial context." United States v. Pugliese, 805 F.2d 1117, 1125 (2d Cir. 1986).
First, Grullon alleges that this Court is biased against him as evidenced by its rulings. In particular, he states that the Court (1) failed to hold an evidentiary hearing concerning his application to withdraw his guilty plea, (2) denied his request to withdraw his guilty plea, (3) did not consider his evidence in support of his claims against his attorneys, (4) failed to perceive Government fabrications against him, (5) failed to perceive that the Government's investigation of him was inadequate, and (6) ignored exculpatory evidence.
Grullon also alleges bias as evidenced by this Court's statements, such as (1) "the Court's patience with Grullon's maneuvers grows over-taxed," (2) "you may think this is some kind of game, but it is not a game," (3) "I am going to discharge Mr. Ricco with the thanks of the Court, most reluctantly, frankly, it infuriates me," (4) "As to the charges, which as I say I think are patently false, I don't believe, Mr. Ricco, that in any way you did anything inappropriate," and (5) "my impression is that I have an opportunistic young man who is very street smart."
The Supreme Court has stated that "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion." Liteky v. United States, 510 U.S. 540, 555 (1994). Instead, "they are proper grounds for appeal, not for recusal." Id. Moreover, a court's stated opinions are not grounds for recusal unless "they display a deep-seated favoritism or antagonism that would make fair judgment impossible." Id. Indeed, even a judge who, upon completion of the evidence at trial, is "exceedingly ill disposed towards the defendant" is not "recusable for bias and prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings." Id. at 550-51.
Grullon has raised no valid grounds for a finding of bias, or the appearance of bias, by this Court. He has offered no evidence of any conduct outside of these proceedings that would support his claim of bias. Grullon bases his claim solely on this Court's rulings and its in-court statements. As noted in Liteky, a court's rulings are proper grounds for an appeal, but not normally for a claim for recusal. Moreover, although this Court's in-court statements may have indicated a certain level of dissatisfaction with Grullon's pattern of discharging his attorneys, they do not display a level of "deep-seated antagonism that would make fair judgment impossible." Id. The Court therefore rejects Grullon's claims of bias, and declines to recuse itself from his case.
II. Motion to Vacate Crullon's Conviction and Sentence
Grullon asserts five claims in his § 2255 petition and supplements: (1) he received unconstitutionally ineffective representation from both his trial counsel, Sternheim, and his appellate counsel, Schechter; (2) his conviction was obtained in violation of his due process rights under the Fifth Amendment to the United States Constitution; (3) he was not advised that his guilty plea in the case before this Court constituted a waiver of his right to appeal his other case before Judge Sweet; (4) his case before Judge Sweet was barred by the Fifth Amendment's Double Jeopardy Clause; and (5) his plea in this case was invalid because (a) he was not advised that his conviction could result in his deportation, and (b) this Court did not impose a term of supervised release as part of his sentence. The Court will consider his contentions in that order.
A. Ineffective Assistance 1. Sternheim
Grullon argues that the assistance he received from his trial counsel, Sternheim, was unconstitutionally ineffective. This rehashes the same argument that he raised before the Second Circuit in United States v. Ramon Torres, 129 F.3d 710 (2d Cir. 1997). A defendant may not relitigate issues through a § 2255 motion that have already been raised and considered on direct appeal. See United States v. Perez, 129 F.3d 255, 260 (2d Cir. 1997).
Grullon argued on appeal that Sternheim's representation of him was unconstitutionally ineffective. He stated that his plea was neither knowing nor voluntary because Sternheim pressured him into pleading guilty, and that she failed to interview and call certain witnesses at his pre-trial suppression hearing. The Second Circuit rejected that claim and affirmed Grullon's conviction on November 17, 1997. See Ramon Torres, 129 F.3d 710. This Court sees no need to revisit that claim.
2. Schechter
Grullon also argues that the representation he received from Schechter, his appellate counsel, was unconstitutionally ineffective. Specifically, Grullon states that Schechter did not permit him to review the final draft of the appellate brief before it was filed, and that Schechter failed to raise on appeal certain issues that he knew were "extremely relevant" to Grullon.
To establish his claim of ineffective assistance of counsel, Grullon must show the following two requirements as stated in Strickland v. Washington: (1) "that counsel's representation fell below an objective standard of reasonableness;" and (2) that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. 668, 687, 694 (1984). Although the Strickland test was formulated for evaluating a claim of ineffective assistance of trial counsel, the same test is used with respect to appellate counsel. See Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994).
Grullon cannot meet Strickland's second requirement, that Schechter's alleged errors probably changed the outcome of Grullon's case. As the Court shall discuss in the remainder of this Opinion and Order, Grullon cannot show that the claims he now raises for the first time would have had a significant chance of success had Schechter raised them on appeal. Moreover, there is no constitutional right "to have appellate counsel raise every non-frivolous issue that the defendant requests." Jones v. Barnes, 463 U.S. 745, 754 n. 7 (1983). Accordingly, the Court rejects Grullon's ineffective assistance claims against Schechter.
B. Due Process
Grullon claims that the Government obtained his conviction in violation of his Fifth Amendment right to due process. He argues, specifically, that the Government abused its power by both suppressing evidence and using false evidence. It is well-established that "suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment." Brady v. Maryland, 373 U.S. 83, 87 (1963).
Grullon has provided no details or evidence to support his allegations. Consequently, there is no reason to believe that the Government engaged in any misconduct relating to the evidence in his case. A § 2255 petition must be based on more than "[a]iry generalities, conclusory assertions and hearsay statements." United States v. Aiello, 814 F.2d 109, 113-114 (2d Cir. 1987). The Court therefore rejects Grullon's unsupported due process allegations.
C. Waiver of Appeal
Grullon argues that both Sternheim and the Government failed to advise him that by pleading guilty to the superseding information in this case, he waived his right to appeal his narcotics case before Judge Sweet. He states that if he had been advised of that waiver, he would not have pled guilty. Grullon did not raise this claim in his appeal to the Second Circuit.
Grullon cannot show that he was prejudiced by his inability to appeal his case before Judge Sweet. A defendant cannot use a § 2255 petition as a substitute for a direct appeal. See United States v. Frady, 456 U.S. 152, 165 (1982). Nevertheless, a defendant may raise an issue for the first time in a § 2255 petition if he shows (1) cause for his failure to do so on direct appeal, and (2) prejudice from the alleged error. See Reed v. Farley, 512 U.S. 339, 354 (1994).
Grullon's plea agreement provided for a complete dismissal of the narcotics case pending before Judge Sweet. Accordingly, that case was dismissed upon his plea of guilty before this Court. His resulting maximum sentence was seven years' imprisonment, in contrast to the more than 100 years he could have faced if convicted of all charges in the indictments before Judge Sweet and this Court. This Court cannot guess why he would seek to appeal the dismissal of that case before Judge Sweet. In any event, because Grullon cannot show prejudice from his inability to appeal that dismissal, his claim must be rejected.
D. Double Jeopardy
Grullon claims that his case before Judge Sweet was barred by the Fifth Amendment's Double Jeopardy Clause. He argues that because the Government "seized his property without a search warrant and because they closed down his place of business without proper justification," he had already been punished for purposes of the Double Jeopardy Clause. (Grullon's 1/26/99 Supp. at 7).
As the Court has noted, Grullon's narcotics case before Judge Sweet was dismissed upon his plea of guilty in the case before this Court. Consequently, his double-jeopardy claim is moot. Furthermore, even to the extent Grullon bases this claim on an alleged forfeiture proceeding, it is without merit. The Supreme Court concluded in United States v. Ursery that a civil forfeiture does not constitute punishment under the Double Jeopardy Clause of the Fifth Amendment. See 518 U.S. 267, 292 (1996).
Ursery involved two cases in which criminal indictments were brought against defendants for drug activity after those defendants had already been subjected to civil forfeiture proceedings in connection with that drug activity. Id. at 271-72. The Ursery Court explained that a civil forfeiture is "not an additional penalty for the commission of a criminal act, but rather is a separate civil sanction, remedial in nature." Id. at 278. Therefore, double jeopardy does not apply "[u]nless the forfeiture sanction was intended as punishment, so that the proceeding is essentially criminal in character." Id. at 277.
Grullon has not shown that the Government brought forfeiture proceedings against him in order to punish him. The Court therefore rejects Grullon's double jeopardy claim.
E. Invalid Plea
Grullon argues that his plea was invalid because (1) he was not advised that his conviction could result in his deportation, and (2) this Court did not impose a term of supervised release as part of his sentence.
Grullon also argues that his plea was invalid because he received unconstitutionally ineffective assistance from Sternheim. The Court has already rejected his ineffective-assistance claim against Sternheim (see supra part II.A.1), and will not revisit it here.
The Court rejects Grullon's first grounds for his claim that his plea is invalid. Grullon argues that his guilty plea was invalid as not knowing and voluntary because he did not understand that his plea would result in his deportation. He states that Judge Duffy did not explain to him before accepting his plea of guilty that he would be deported. Moreover, Grullon alleges that Sternheim told him that he might not be deported because of his many years of residence in the United States.
Irrespective of what Sternheim allegedly told Grullon, his argument fails because deportation is only a collateral consequence of his plea. Rule 11 requires a judge to insure that a defendant who pleads guilty fully understands the nature of the charges and the consequences of his plea. See McCarthy v. United States, 394 U.S. 459, 464 (1969). For a plea to have been made knowingly and voluntarily, the defendant must have been informed of the direct consequences of the conviction. Brady v. United States, 397 U.S. 742, 755 (1970). However, he need not have been informed of the collateral consequences of that plea. United States v. Salerno, 66 F.3d 544, 550-51 (2d Cir. 1995).
Deportation is a collateral, not a direct consequence of a guilty plea. See Parrino, 212 F.2d 919, 921 (2d Cir. 1954); Polanco v. United States, 803 F. Supp. 928, 931-32 (S.D.N Y 1992) ("Deportation is a peripheral consequence, not a punishment imposed by the trial judge" and, "[a]s such, the Court [is] under no duty to warn the petitioner of the likelihood of deportation"). As a result, Grullon's guilty plea was valid even if he had never known that it could result in his deportation.
The Court also rejects Grullon's supervised-release argument as a basis for his claim that his plea was invalid. This Court did not impose a term of supervised release as part of Grullon's sentence in addition to his term of imprisonment. Grullon states that he would not have pled guilty had he known that this Court would not impose a term of supervised release. As a result, he argues that his guilty plea was neither knowing nor voluntary, and thus was invalid.
Grullon cannot show that he was prejudiced by this Court's decision not to impose a term of supervised release in addition to Grullon's prison term. Grullon must show prejudice as part of this claim under § 2255 because he did not previously raise it in his direct appeal. See Reed, 512 U.S. at 354. A term of supervised release can only add to a defendant's term of imprisonment, it does not substitute for any portion of that sentence. See 18 U.S.C. § 3583(a); U.S. Sentencing Guidelines Manual at 373 (1998). This Court finds that Grullon was not prejudiced by not receiving a term of supervised release in addition to his prison sentence. His claim, therefore, is rejected.
CONCLUSION
As stated in this Court's Order of December 11, 2000, Grullon's petition to vacate or set aside his conviction and sentence pursuant to § 2255 is hereby denied. His request that this Court recuse itself from his case is denied. All other supplemental motions are denied. This case is closed, and the Court directs the Clerk of Court to remove this case from the Court's active docket.
SO ORDERED.